Some More Lowlights From The Leaked ACTA Draft: Whole Thing Can Be Rammed Through With 5 Votes

from the it-ain't-pretty dept

Michael Geist points us to a rather thorough review, by Margot Kaminski, of some of the more troubling aspects of the leaked ACTA draft. Kaminski highlights 24 different points, but we'll just pick out a few key ones. For example, she notes that ACTA would create an express lane for intellectual property cases in the courts, and questions: "Why should copyright take precedent over other cases and have such a fast turnaround?" There are a few concerning things about border searches. While ACTA negotiators and defenders keep insisting that ACTA won't mean border searches for individuals, the draft highlights a few things that are troubling. For example, the US, Canada and New Zealand want to change the exemption criteria for border searches from the current "small quantities of goods of a non-commercial nature" to the much lower standard of "reasonably attributable to personal use of the traveler." In other words, this does, in fact, grant more powers to customs and border patrol to search laptops and iPods and the like, if there's any indication of more information that is "reasonably attributable to personal use," -- though, that standard seems quite vague and subjective.

Then there are the big ones, such as greatly increasing the scope of what's considered criminal copyright infringement (remember, in reality, most copyright infringement is a civil offense, but copyright holders have tried desperately to turn it into a criminal offense, so the government gets to do the dirty work for them):

Expanding the definition of Criminal Copyright Infringement- THIS IS BIG: ACTA as the US wants it to read will expand the international definition of criminal copyright infringement to explicitly include Internet "piracy" done for personal benefit alone. Under TRIPS, countries must hold a person to have committed an act of criminal copyright infringement if he or she has willfully infringed on a "commercial scale", which was understood to mean involving sale to others. ACTA: 1) expands the international definition of "commercial scale" to include "private financial gain," (Australia and New Zealand request striking "private" to stick to a TRIPS understand of commercial scale) which is the standard in U.S. law, and 2) explicitly includes "significant willful infringements that have no direct or indirect motivation of financial gain" (U.S. initially, in its ACTA discussion paper, made clear that this was referring to Internet copyright infringement: "without motivation for financial gain to such an extent as prejudicially affect the copyright owner (e.g., Internet piracy).")

The downloading of copyrighted files or collection of copyright-infringing research "for private financial gain" by avoiding paying for such material may be found to meet this standard. This standard has the potential to criminalize the behavior of an enormous number of individuals, worldwide.

Along these lines, Kaminiski notes that ACTA greatly enhances and expands criminal aspects of various laws, well beyond previous agreements (i.e., this is not -- as ACTA defenders keep claiming -- just about enforcement).

And, yes, despite claims to the contrary, ACTA even goes beyond what US law currently includes. For example, in the language that seeks to export the DMCA to other countries, the US very specifically chooses language that goes beyond the DMCA -- specifically including language that covers inducement. Inducement is not found in the DMCA, though it is a part of US case law. But, of course, as part of case law, Congress could always clarify it and get rid of it. However, with it in ACTA, we'd be blocked because the industry folks would immediately start screaming about how we have to "obey our international obligations."

And the scariest part, right at the end:

Only Five states are required for ratification. So effectively, the five most powerful can rush to sign on to terms that everybody else will have to take on later.

Back when we first discussing the bits and pieces of ACTA leaks, an IP lawyer in our comments suggested that we shut up until the full document was produced, as commenting on it beforehand wouldn't do any good, and he was sure (so sure) that it wouldn't possibly include any language to expand US law. I'm curious what he thinks now.

I'm glad this will be challenged for it's unconstitutionality. Those involved in it's authorship or passing should be investigated for crimes against the United States like Cheney and Waterboarding were.

Rapidshare has anticipated on all this

Mike, please check out this article. It has some outrageous statements.

Rapidshare is anticipating on all this

Rapidshare Aims To Convert Pirates Into Customers
Written by Ernesto on March 26, 2010
The file-hosting service Rapidshare is seeking major entertainment industry partners for an online store where links to infringing material will redirect to. The plan is an attempt to bridge the gap between copyright holders and users of the site who distribute infringing material.http://torrentfreak.com/rapidshare-aims-to-convert-pirates-into-customers-100326/

Anti-Citizen Trade Agreement is BS

Anti-Citizen Trade Agreement is a pile of krap that I hope hits content providers like Holywood right in their greedy asses.
I am boycotting any and all big content companies.I only buy their krap used if at all.

Er?

"Only Five states are required for ratification. So effectively, the five most powerful can rush to sign on to terms that everybody else will have to take on later."

I just don't see how that could make sense. There is no international body with the power to enforce via votes a treaty or law that a state has not signed on to. How would five yay votes for ACTA equal ratification in a country that had not agreed to adopt it?

@ten

WRONG we actually live in whats called a plutocracy, govt by corporations and trade houses.

WHY? cause you and others are too fucking lazy to fight for your rights.

THIS IS why....

@11 you some kinda a sick weird freak?
Let me get this straight, when they do bad stuff its cause they want to masturbate when they get bad news coverage?
YOU should get a place on the pitch fork too , your genetic code needs to be utterly removed form the gene pool ( HI TAM )

Re: @ten

The problem is that citizens are not organized. In such a large society we need large scale communication mechanisms to remain organized. But, outside the Internet, the FCC et al have ensured that we can't use public airwaves or build new infrastructure that would allow such things. What we need is for the FCC to allow a portion of spectra to go into providing everyone with a mechanism to post and search through (at least) text on databases/forums located on the Internet. Anyone with some sort of wireless connector (which people should be able to buy from the store) should be allowed to connect and this can enable ALL citizens to communicate with each other and organize protests and help each other with tech support issues and other problems. But it should be, at least initially, text only being that text takes up very little bandwidth compared to voice or pictures or video or sophisticated java code. Everyone (who either has a wireless connector or who has Internet access) should have a right to connect to any of these text servers (and anyone should be able to host their own text server) and post comments and respond to others, even anonymously, and search through the database for existing text.

What we really need is for mechanisms that encourage citizens to FREELY communicate (ie: without paying some monthly fee) with one another so that we can organize, just like corporations organize. But as the laws currently stand, outside the Internet (and not everyone has the Internet, at least not yet) the only mechanisms of communication involve either using the phone (and that can cost money for long distance communication at least and it's not efficient for organizing things like protests) or creating ones own newspaper (which is also slow/inefficient and expensive). We need a government that doesn't block free communication so that we can organize. The very widespread use of the Internet is still relatively new and corporations have been organized a while before the Internet was as prominent as it is now (while the mainstream media has been keeping us in the dark thanks to broken laws that enable them to), which is partly why, over the years, the laws have become outrageously absurd (ie: copyright length among many other laws). The laws in place are intentionally designed to keep us ignorant and from communicating from one another and organizing and so the organized corporations and rich people can control us.

Re: Rapidshare has anticipated on all this

"The file-hosting service Rapidshare is seeking major entertainment industry partners for an online store where links to infringing material will redirect to. The plan is an attempt to bridge the gap between copyright holders and users of the site who distribute infringing material."

Wonderful! How is it again that they are going to point me to legal, non-infringing downloads of material that THEY DONT OFFER THAT ARE OUT OF PRINT OR NEVER HAVE BEEN OFFERED? I would LOVE to hear their solution to this aspect of "piracy."

Re: Re: Cram Down!

You need to go back to school. The United States is not a democracy on any level. You may be right about the money side of it but the US is NOT a democracy it is a Constitutional Republic with a bicameral congress to insure that 51% of the people don't get piss in 49% of the people's Wheaties. So nope, not a Democracy. Although you appear to be a product of the public school system.

Amazing...

I'm just so amazed that the President of the United States of America has absolutely no regard or respect for the Constitution of the United States... or the people of the United States. How... unusual... not.

Here is a really good point and its unintended consequnce

"13) ACTA enlarges the scope of international criminal law sanctions to include imprisonment. TRIPS allowed countries to chose between criminal fines and prison terms, and sets no minimum standards for either. Art. 61. ACTA 2.15 mandates "penalties that include actual sentences of imprisonment as well as monetary fines", and includes a negotiator's note by the US (requested deleted by Australia and Canada) reiterating that countries "encourage competent authorities" to "impose penalties... including imposition of actual terms of imprisonment"."

Recently someone commented here on TechDirt that ACTA would lead to more CC (Creative commons) Music and Videos (I am to lazy tonite to find the link). It got me thinking about how to redo a Creative commons lisc to circumvent ACTA and reset the CC-copyright on artistic works to pre 1976 levels. The rationale is simple. The actions of RIAA and the MPAA have caused a back lash with artists speaking out against them and leaving the labels. That was just over lawsuits, imagine what will happen when people start getting put on probation and jailed. The future excuse from the media distribution types will be "its not our fault its an international treaty". ACTA as a way to not be the bad guys filing law suits and to pass the buck ... brilliant!!! Its not going to work everyone knows or will know about ACTA.

Here is the unintended consequence.

More artists leaving the labels as 360 deals make them indentured servants. The business models will mature and the support systems grow online for artists. With that growth online will come a need for a more rational copyright model that is unlike what big media does. pre 1976 copyright Creative commons with the criminal and civil penalties set back to the same time period would be the best way to go. This can lead to people trusting the P1976CC artists, hating the labels, and accelerate the collapse of big media.

Re: Re: Re: Cram Down!

IP lawyer

Back when we first discussing the bits and pieces of ACTA leaks, an IP lawyer in our comments suggested that we shut up until the full document was produced, as commenting on it beforehand wouldn't do any good, and he was sure (so sure) that it wouldn't possibly include any language to expand US law. I'm curious what he thinks now.

Re: IP lawyer

Re: Re: @ten

I don't think it's that the citizens aren't organized, it's that they either don't know what's going on, or don't care.

I vented my hatred of ACTA at a guy who works for the Democratic Party. That includes my dislike of Joe Biden (for tech issues at least).

His response was, "we've got health care, the economy, and a bunch of other things to worry about. Protecting the rights of people who download MP3's is not really at the top of the list right now."

He had, in fact, never heard of ACTA before I told him about it and how bad it was.

And he does have a point: compared to making sure everyone isn't homeless and dead in a year, ACTA does seem trivial. But it's the trivial stuff which will come back and bite us in the ass for years to come.

On a different subject: If you're a touring musician who has ever crossed a national border, you'll know from hard experience that border searches harm musicians. Whenever anyone I know plays in Canada, they have to leave most of their merch in the U.S. so they won't have to pay import taxes (and that's on top of the hugely expensive "performance visa" you're officially supposed to get).

So how are these new rules helping musicians in any way? For that matter, how is a customs official supposed to tell the difference between "official" and "unofficial" merchandise? How are they supposed to tell a musician from a counterfeiter?

They're not, that's how. Major labels don't care about this stuff, since they can either produce their merch in-country, pay the fees (often taken out of artists' performance fees), or work out a deal with the venues or cities they're playing in. Indie artists can't afford any of those things. It's just another way that majors are trying to squash indie artists through lopsided laws.

Re: Re: Er?

From Wikipedia Ratification article:
"The treaty or legislation does not apply until it has been ratified. A multilateral agreement may provide that it will take effect upon its ratification by a specified number of signatories, rather than all. [snip]. A treaty in force does not apply to signatories that have not ratified it."
In other words: less than 5 states ratify: the Treaty doesn't apply anywhere. 5 or more ratify, it applies to those states who have ratified it, but not to any who have signed it, but not yet ratified.
So however many bad features this has, the 5 states requirement isn't one of them.

"Protecting the rights of people who download MP3's is not really at the top of the list right now."

What the Democrats don't seem to understand is that they are launching a war against their younger voters. Good luck expecting them to turn out and be enthusiastic in 2012. The under-30 voters were 66% for Obama in 2008, according to the Pew Research Center.

Big labels in prison?

Does this mean that if ACTA comes to pass, we can bring the head of the big 5 to "justice" since they haven't paid thousands of artist for their music that they have produced and sold without paying the artist because they can't find them? That would be the day!